State v. Newell

679 A.2d 1142, 141 N.H. 199, 1996 N.H. LEXIS 72
CourtSupreme Court of New Hampshire
DecidedJuly 16, 1996
DocketNo. 94-662
StatusPublished
Cited by11 cases

This text of 679 A.2d 1142 (State v. Newell) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Newell, 679 A.2d 1142, 141 N.H. 199, 1996 N.H. LEXIS 72 (N.H. 1996).

Opinion

Johnson, J.

The defendant, Mark Newell, stabbed Glen Chase during an altercation and was charged with first degree assault. See RSA 631:1, I(b) (Supp. 1995). At trial, he admitted that he stabbed Chase, but alleged that he acted in self-defense. See RSA 627:4 (1986). The jury convicted the defendant of the crime charged. He appeals, arguing that the Superior Court (Perkins, J.) erred in excluding evidence of Chase’s prior misdemeanor convictions for reckless conduct and simple assault and in excluding evidence of the conduct underlying the convictions. He also asserts error in the court’s self-defense instructions. We affirm.

The defendant first argues the prior convictions issue. In addressing this issue, we keep in mind that “[t]he trial court has broad discretion in ruling on the admissibility of evidence, and we will not disturb its ruling absent an abuse of discretion.” State v. Patten, 137 N.H. 627, 629, 631 A.2d 921, 922 (1993).

In general, our rules of evidence forbid proof of a person’s character “in order to show that the person acted in conformity therewith.” N.H. R. Ev. 404(b); see N.H. R. Ev. 404(a); State v. Bassett, 139 N.H. 493, 496, 659 A.2d 891, 894 (1995). Rule 404(a), however, provides three exceptions to this prohibition. Rule 404(a) states:

Evidence of a person’s character or a trait of character is not admissible for the purpose of proving that the person acted in conformity therewith on a particular occasion, except:
(1) Character of Accused. — Evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same;
(2) Character of Victim. — Evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the [201]*201prosecution in a homicide case to rebut evidence that the victim was the first aggressor;
(3) Character of Witness. — Evidence of the character of a witness, as provided in rules 607, 608, and 609.

Thus, Rule 404(a)(2), effectively identical to its federal counterpart, Fed. R. Evid. 404(a)(2), specifically permits a defendant to introduce evidence of a victim’s pertinent trait of character as substantive evidence to prove that the victim acted in conformity therewith on a particular occasion. See United States v. Keiser, 57 F.3d 847, 854 (9th Cir.), cert. denied, 116 S. Ct. 676 (1995).

In an assault case such as this, where the defendant asserts self-defense, the victim’s peaceful or aggressive character is a pertinent trait. See Fed. R. Evid. 404 advisory committee’s note. Evidence of that trait is therefore admissible under Rule 404(a)(2). See Keiser, 57 F.3d at 853-54. Accordingly, the defendant had the right to introduce evidence of Chase’s aggressive character. The defendant could not, however, introduce Chase’s convictions and the conduct underlying them as substantive evidence because such evidence does not meet the requirements of Rule 405.

Rule 405 “establishes the permissible methods of proving character under Rule 404(a)(2).” United States v. Talamante, 981 F.2d 1153, 1156 (10th Cir. 1992), cert. denied, 507 U.S. 1041 (1993); see State v. Roy, 557 A.2d 884, 893 (Vt. 1989). It provides:

(a) Reputation or Opinion. — In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.
(b) Specific Instances of Conduct. — In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of his conduct.

Again, the effective language of this rule is identical to its federal counterpart. Compare N.H. R. Ev. 405 with Fed. R. Evid. 405.

The evidence the defendant sought to admit — Chase’s prior misdemeanor convictions and the conduct underlying them — constitutes neither reputation nor opinion evidence. Thus, it was admissible under Rule 405 only if Chase’s character was an essential element of the defense of self-defense. N.H. R. Ev. 405(b); see Keiser, 57 F.3d at 857; compare Lapierre v. Sawyer, 131 N.H. 609, [202]*202612, 557 A.2d 640, 642 (1989) (defendant’s character not an element of plaintiff’s claim that defendant negligently struck racquetball no longer in play; specific instances of prior unsportsmanlike conduct therefore held inadmissible under Rule 405(b)) with Panas v. Harakis & K-Mart Corp., 129 N.H. 591, 613, 529 A.2d 976, 989 (1987) (evidence that employee security guard had falsely represented himself as a police officer admissible under Rule 405(b) to prove employer’s negligent hiring and supervision).

To determine whether Chase’s character was an essential element of the defense of self-defense, we examine RSA 627:4, the statutory basis for the defense. A victim’s aggressive character is not among the elements set forth in RSA 627:4. In a similar context, the Ninth Circuit Court of Appeals explained:

Even had [the. defendant] proven that [the victim] is a violent person, the jury would still have been free to decide that [the victim] was not using or about to use unlawful force, or that the force [the victim] was using was not likely to cause death or great bodily harm, or that [the defendant] did not reasonably believe force was necessary, or that he used more force than appeared reasonably necessary. On the other hand, a successful defense in no way depended on [the defendant’s] being able to show that [the victim] has a propensity toward violence. A defendant could, for example, successfully assert a claim of self-defense against an avowed pacifist, so long as the jury agrees that the defendant reasonably believed unlawful force was about to be used against him.

Keiser, 57 F.3d at 857; see also Tice v. State, 624 A.2d 399, 401 (Del. 1993). Accordingly, evidence of Chase’s convictions and the conduct underlying them was inadmissible as substantive evidence because Chase’s character was not an essential element of the defense of self-defense. See Tice, 624 A.2d at 401-02; Roy, 557 A.2d at 893.

The defendant relies on State v. Lavallee,

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Bluebook (online)
679 A.2d 1142, 141 N.H. 199, 1996 N.H. LEXIS 72, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-newell-nh-1996.